Electronic Discovery, Informational Privacy, Facebook and Utopian Civil Justice

Abstract

Electronically stored information (“ESI”) has had a massive impact on our society. In civil litigation the discovery process remains fundamental. The discovery process traditionally represents equilibrium between adversarial justice’s incorporation of two competing principles. The search for the truth and recognition certain information is private and therefore unavailable, even if dispositive, for consideration in resolving the dispute. The contours of this private information are defined by the attorney-client privilege, the work product doctrine and ethical confidentiality rules. Electronically stored information and the new paradigm of electronic discovery shift this equilibrium heavily in favor of the truth. Electronic discovery effectively obliterates the privacy traditionally protected in adversarial justice. This obliteration of privacy in discovery is a reflection of ESI’s reduction of informational privacy on a broader societal scale. For example ESI has broadened the concept of newsworthiness such that the tort of public disclosure of private fact no longer exists and online social networking, possible only because of ESI, is an unprecedented, voluntary relinquishment of informational privacy. The decline in privacy is directly attributable to the space less nature of ESI and an ESI fuelled shift in social morality. This shift in privacy facilitates implementing a justice system combining the best of both the European inquisitorial system and America’s adversarial system. The hybrid system ensures the Continental search for material truth is not subjugated by the recognition of privacy as in the adversarial model but retains the laudable, libertarian, societal safeguards of the adversarial system. This justice model decreases litigation costs, improves public perception of the civil justice system and increases the relevance and applicability of ethical rules.